“There is an ethical consideration that all animals have a fundamental right to healthy habitat… [that] underpins for many the drive for whale conservation and marine protected areas.” — Erich Hoyt

By Darlene Lee and Michelle Bender

What is Puget Sound?

Puget Sound is a transition zone between river and maritime environments. With its complex system of interconnected marine waterways and basins,[i] it is the third largest estuary in the United States, after Chesapeake Bay in Maryland and Virginia, and San Francisco Bay in northern California.

In 2009, the collective waters of Puget Sound, the Strait of Juan de Fuca, and the Strait of Georgia were named the Salish Sea by the United States Board on Geographic Names. Sometimes "Puget Sound" and "Puget Sound and adjacent waters" refer to Puget Sound proper together with the waters to the north, including Bellingham Bay and the San Juan Islands region.

Marine Protected Areas in Puget Sound

Marine Protected Areas (MPAs) have existed in Puget Sound since the early 1900s, although most were established after the 1960s. By 1998, at least 102 intertidal and subtidal protected areas existed in Puget Sound; five managed by at least 12 different agencies or organizations at the local, county, State and Federal level.

A 2009 inventory found a total of 127 MPAs in Washington State, of which 16 percent were no-take areas in which all resource harvest was prohibited. In addition to areas restricting harvest, some MPAs involve habitat protections or restrict non-harvest activities such as vessel anchoring or recreational access. These protected areas account for nearly 600 miles of Washington State’s shoreline; 24 miles are within the national MPA system[HG1] .[ii]

What Challenges Does Puget Sound Face?

From the 1960s onwards, Puget Sound suffered serious pollution. Industrial pipes pumped toxic chemicals into the water; dams blocked the way for salmon; natural resources were overharvested. Those problems still persist, but ecosystem management in Puget Sound has significantly advanced since the 1970s and 1980s.

Scientists now recognize that what happens on the land is intricately tied to the health of the water. We face climate change and unprecedented population growth. Scientists have identified thousands of different human-caused pressures on the ecosystem. New threats include stormwater, emerging contaminants and widespread declines in species and habitats.[iii]

Approximately 23 percent of Puget Sound Basin forestland has moved to human uses, including agriculture and urban lands. Tidal marsh and other river estuarine ecosystem types declined by 80 percent in the last 150 years through a process of diking and draining.[iv]

In the last 100 years, more than 60 percent of Washington State’s old-growth forest was harvested. Much of the remaining old-growth remnants are limited to relatively high elevation public land.

Killer Whales in the Puget Sound

Southern Resident killer whales range in the Salish Sea and along the West Coast. They depend heavily on Chinook salmon for food. In the late-1990s, Southern Resident killer whales experienced a dramatic decline. A precarious food supply, threats from pollution, vessel traffic, and noise continue to jeopardize their survival. As a result, they are federally listed as endangered.[v]

In 2009, the National Oceanic and Atmospheric Administration (NOAA) Fisheries considered a protection zone as part of a package of vessel regulations to protect these whales. The agency adopted vessel traffic regulations in 2011, requiring that boats stay 200 yards from the whales and out of their path, but it did not finalize a protected zone due to strong opposition at the time.[vi]

The Southern Resident killer whale population in Puget Sound is actually a large extended family, or clan, comprised of three pods: J, K, and L pods. They are visible throughout the year in Puget Sound, but are most often seen in the summer, especially in Haro Strait west of San Juan Island, the Strait of Juan de Fuca, and in the Strait of Georgia near the Fraser River.

Threats to Southern Resident killer whales include contaminants, prey availability, vessels, and noise pollution. Additional human activities, such as underwater military activities, have been identified as potential threats for killer whales, particularly on the outer coast. Their small population size (76 individuals at latest count) and social structure put them at risk for a catastrophic event, such as an oil spill, or a disease outbreak, that could impact the entire population.[vii]

The National Marine Fisheries Service described Southern Resident killer whales as one of eight species most at risk of extinction in its 2015 report to Congress, yet stopped short of expanding critical habitat protections for Puget Sound’s orca whale population. [viii]

The Orca Relief Citizens’ Alliance, Center for Biological Diversity, and Project Seawolf petitioned NOAA Fisheries in November 2016 to establish a protected zone free of motorized boat traffic to promote recovery of Southern Residents. The NOAA Fisheries sought public comments on a petition in January 2018 calling for a whale protection zone for highly endangered Southern Resident killer whales on the west side of Washington’s San Juan Island. [ix]

NOAA Fisheries recently completed a status review for Southern Residents under the Endangered Species Act. Although the review documented progress in understanding and addressing threats to the whales, it concluded that the Southern Resident population remains at high risk of extinction and should remain listed as endangered. Population modeling by NOAA Fisheries’ Northwest Fisheries Science Center suggests the possibility of further declines in Southern Resident numbers, with recovery actions needed to reverse the trend.[x]

How Does Earth Law Differ from Existing Environmental Protections?

In most countries, nature has the legal status of property. In contrast, Earth Law argues that nature has inherent rights, and legally should have the same protection as people and corporations. Earth law enables the defense of the environment in court—not only for the benefit of people, but for the sake of nature itself.

Earth Law argues that humans and nature are not at odds, but are deeply connected and dependent on one another. Formal recognition of nature’s inherent right to thrive will enable the restoration of balance in the global environment.

Our planet’s health depends on this paradigm shift in law, which represents the next evolution in environmental protection and conservation.

How Earth Law Can Bolster the Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA-1972) places a moratorium on the “taking” (hunting, harassing, capturing, or killing) of marine mammals in US waters.

The MMPA was enacted in response to increasing concern among scientists and the public that some species or stocks of marine mammals may be in danger of extinction or depletion caused by human activities.

The MMPA was the first legislation in the US to mandate an ecosystem-based approach – an integrated management approach that recognizes the full array of interactions within an ecosystem (including humans) rather than considering single issues, species, or ecosystem services in isolation.[xi]

Its primary objective is to maintain the health and stability of marine ecosystems by (i) preventing marine mammal species and population stocks from declining beyond the point where they cease to be significant functioning elements of their ecosystem, and (ii) restoring diminished species and stocks to their “optimum sustainable populations.” [xii][xiii]

Earth Law can further the effectiveness of the MMPA. Earth Law gives formal recognition to the rights of marine mammals.

Regulating tourism and shipping traffic to have minimal effect on these species

Prohibiting extraction or take in their critical habitat— no incidental take permits (if toxic releases damage the whale-supporting ecosystem, it will be in the province of NOAA to refer the matter to the Department of Justice to litigate”[xv])

Maintaining population levels according to their natural capacity— rather than as “functioning elements”

Making illegal activities that market or commercialize these species

Additionally, legal rights will affect the enforcement process by giving the marine mammals standing to sue; furthering their protection and effecting protective and restorative activities for species.

For example, the MMPA strictly prohibits the taking of marine mammals within national waters except when permissible by permit. It provides that “any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary...”[xvi]

With Earth Law in place in a marine protected area, the marine mammals could be considered a party opposed to such a permit, and humans could express this interest on their behalf.[xvii]

Case Study: Whale and Dolphin Sanctuary in Uruguay

The Whale and Dolphin Sanctuary in Uruguay provides an example of how Earth Law can benefit Puget Sound. Established as a marine protected area in 2013, the Sanctuary needed a management plan to enforce the legislated protections.

Uruguay’s largest multi-use protected area, the Whale and Dolphin Sanctuary was established in 2013. The campaign for legal rights has been promoted alongside the #OceanoSanos (#HealthyOceans) campaign that seeks to protect the country’s marine environment by promoting responsible fisheries and preventing illegal, unreported and unregulated (IUU) fishing.

Organización para la Conservación de Cetaceos (OCC) partnered with Earth Law Center to draft a governance plan to ensure enforcement of rights and make whale and dolphin protection a legal responsibility. This will include:

Creating a sustainable relationship with the ecosystem and species within it.

Making whale and dolphin protection a legal responsibility; notably the Southern Right Whale and the Franciscana dolphin, an IUCN Red List Species.

Reviewing activities such as port construction, fishing and vessel traffic for their impact on the sustainability of the Sanctuary.

What Would Earth Law for the Puget Sound Look Like?

Incorporating Earth Law into existing and new marine protected area governance can enhance and restore both the ecosystem of the Puget Sound as well as preventing the extinction of the Southern Resident whales.

There exist multiple pathways for rights of nature to protect the Puget Sound and its species.

Pass a law recognizing the Southern Resident whales as legal entities, with all the rights of a legal person. Action to protect the three pods of the Southern Resident whales could address the high pollution of Puget Sound and provide legal recourse to stop commercial discharges.

[xii] “Optimum sustainable populations” replaced “maximum sustainable yield,” which sought ensure that species replenish themselves for an adequate harvesting subsequent years, as the grounding principle of US resource management approach.